Air India Limited & Others v. Sindhu Rani C.K

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940** **WA.No. 2122 of 2018** **JUDGMENT IN WP(C) 38217/2016 of HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 2 TO 6:** - **1 AIR INDIA LIMITED REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, AIRLINES HOUSE, 113, GURUDWARA RAKABAGANJ ROAD, NEW DELHI 110001.** - **2 THE DIRECTOR PERSONNEL, AIR INDIA LIMITED, AIRLINES HOUSE, 113, GURUDWARA, RAKABAGANJ ROAD, NEW DELHI 110 001** - **3 THE REGIONAL DIRECTOR SOUTHERN REGION, AIR INDIA LIMITED, AIRLINES HOUSE, MEENAMBAKAM, CHENNAI - 600 027.** - **4 THE SENIOR MANAGER HUMAN RESOURCES DEPARTMENT, AIR INDIA LIMITED, AIR INDIA UNITY COMPLEX, GSI ROAD, PALLAVARA CONTONMENT, CHENNAI 600 043.** - **5 THE STATION MANAGER AIR INDIA LIMITED, AIR INDIA BUILDING, VIKAS BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURM - 695 033.** **BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.P.GOPINATH (SR.)** WA.No. 2122 of 2018 -2- ## **RESPONDENT/PETITIONER & 1ST RESPONDENT:** **1 SINDHU RANI C.K AGED 48 YEARS WIFE OF THE LATE CHANDRAN GOPI, RESIDING AT DHANYA BHAVAN, ELINJINMODU MELA PUTHEN VEEDU, POUDIKONAM.P.O, THIRUVANANTHAPURAM 695588 2 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF CIVIL AVIATION, NEW DELHI - 110 001.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** WA.No. 2122 of 2018 -3- ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** Respondents 2 to 6 in W.P.(C) No.38217 of 2016 have filed this appeal on being aggrieved by the judgment dated 21.8.2018 passed thereon. The first respondent herein, who is presently working as peon under the first appellant herein on casual basis, filed the writ petition claiming regular appointment in any of U1 level posts and also for a direction to the first appellant herein to consider her claim for such appointment. The first respondent herein/the writ petitioner is the widow of one Chandran Gopi who died in harness on 23.02.2001 while working as Commercial Assistant Grade-II under the 5[th] appellant. He was survived by the writ petitioner, his mother and his two daughters. The first respondent/the writ petitioner submitted an application for compassionate appointment and pursuant to WA.No. 2122 of 2018 -4- which, she was offered causal engagement after subjecting her to medical examination, evidently, on out-of-turn basis. It is also to be noted that pursuant to her repeated representations for regular appointment, she was again subjected to interview and medical examination and the said fact is evident from Ext.P3 letter of the National Aviation Company of India Ltd. Though she was cleared in the medical examination, she was not given regular appointment. Ext.P4 letter would reveal that she was informed that she could not be given regular appointment owing to a ban on fresh recruitment ordered by the Ministry of Civil Aviation in May, 1997 and in fact, it was in the said circumstances that she was offered casual engagement. Her further case is that the Recruitment Section at Mumbai had conducted a selection process in December, 2008, but it was put on hold. She was informed that her claim would be WA.No. 2122 of 2018 -5- considered along with other compassionate cases. While so, she came to know that one Smitha Raja was offered compassionate appointment as Supervisor-Personnel under the 5[th] respondent as per Ext.P9 order dated 1.4.2016. Thereupon, the first respondent herein submitted Ext.P11 representation seeking regular appointment and it was followed by Ext.P12 representation. It is the inaction on Ext.P12 representation that constrained the first respondent herein to approach this Court by filing W.P.(C) No.38217 of 2016. The appellants herein had filed counter affidavit stating that the first respondent herein could not be given regular appointment owing to the ban ordered in the year 1998. Essentially, their contention is that the first respondent herein/the writ petitioner is not justified in claiming appointment citing the regular appointment of one Smt.Smitha Raja under Ext.P10 policy and that the said WA.No. 2122 of 2018 -6- policy is inapplicable in the case of the first respondent herein/the writ petitioner. It was also their contention that no appointment was made in non-operational posts during the ban period from 1996 to 2016, though appointments were effected in operational posts. They also took up the contention that since the the first respondent herein had not challenged Ext.P10 policy and so long as it is not applicable to persons like her, she is not entitled to seek regular appointment. The rival contentions were considered by the learned Single Judge and ultimately, the learned Single Judge disposed of the writ petition on the following lines:- “In the above circumstances, the respondents (the appellants herein) are directed to consider the case of the petitioner for regular appointment against any of the existing vacancies or the next arising vacancy in a post to which she is qualified; not lower to the post, she is occupying.” The appellants are aggrieved by the said direction and that WA.No. 2122 of 2018 -7- is why, they have come up in appeal. 2. We have heard the learned counsel appearing for the appellants. 3. Besides taking up the contentions unsuccessfully raised before the learned Single Judge, it is contended before us, in the light of the decision of the Hon'ble Apex Court in **State Bank of India and another v. Raj Kumar [(2010) 11 SCC 661],** that since the claim for compassionate appointment is traceable only with the scheme framed by the employer, there would be no right whatsoever for an applicant for compassionate appointment to seek it outside the scheme. In short, appointment under the compassionate employment scheme could be made only in accordance with the scheme in force and not after it is abolished/withdrawn or in other words, under the superseded scheme. WA.No. 2122 of 2018 -8- 4. It is contended that the learned Single Judge had failed to take note of the fact that the first respondent herein/the writ petitioner had submitted her application for compassionate appointment only under the earlier policy and she was engaged on casual basis only on humanitarian ground and therefore, outside the scheme of Ext.P10, the appellants ought not have been compelled to consider the claim of the first respondent herein for compassionate appointment. The appellants also took up a contention in this appeal that the application of the first respondent herein has never been considered by the appellant company in view of the ban on appointment to the non-operational posts. In short, the contention is that there is no basis for the finding of the learned Single Judge that the appellants herein had virtually found the first respondent herein eligible for compassionate appointment. That apart, it is WA.No. 2122 of 2018 -9- contended that even if it is taken that the appellants herein had found the first respondent herein eligible for compassionate appointment, the said finding would not and could not confer her any vested right to claim for regular appointment. 5. While considering the tenability of the contentions raised by the appellants, certain undisputed basic facts, are to be borne in mind. The writ petitioner's husband Chandran Gopi died on 23.2.2001 while working as Commercial Assistant Grade II under the 5[th] respondent and immediately after his death, the first respondent submitted an application for compassionate appointment. Based on her application, she was subjected to a Pre-Employment Medical Examination, as is obvious from Ext.P1. In the contextual situation, it is worthwhile to extract the following relevant recital from Ext.P1:- WA.No. 2122 of 2018 -10- “This has reference to your letter dated 4[th] May, 2001 requesting for an appointment with Air India on compassionate ground on out-of-turn basis. In this connection you are required to undergo PreEmployment Medical Examination for which you may kindly liaise with our Part-time Medical Officer Dr.D.N.Prasad.” 6. Thus, scanning of Ext.P1 would reveal that after the death of her husband on 23.2.2001, the writ petitioner submitted an application on 4.5.2001, requesting for an appointment with Air India on compassionate ground on out-of-turn basis and it is in pursuance thereof that she was required to undergo Pre-Employment Medical Examination. Thereafter, she was virtually subjected to Pre-Employment Medical Examination. In that context, it is also relevant to refer to Ext.R2(a) dated 7.8.2001. A perusal of the same would reveal that it was issued in response to a letter dated 5.6.2001 from the Deputy Manager-Personnel to the AGM- WA.No. 2122 of 2018 -11- ## HRD (S.I.), Chennai. The said reply letter reads thus:- “The request of Ms.Sindhu Rani for compassionate appointment, cannot be considered at present and the same may be kept in abeyance.” 7. After subjecting the writ petitioner/first respondent herein to Pre-Employment Medical Examination, taking into account the ban on regular appointment, virtually she was engaged on casual basis, that too, on outof-turn basis. The aforesaid documents would reveal the intention of the authorities to consider her application for appointment on compassionate ground on out-of-turn basis lest they would not have required her to undergo PreEmployment Medical Examination on receipt of her application for compassionate appointment dated 4.5.2001. Obviously, even after subjecting her to Pre-Employment Medical Examination, which is admittedly a part of consideration of the application for regular appointment, WA.No. 2122 of 2018 -12- taking into account the ban on appointment, she was engaged on casual basis. It is to be noted that the said engagement was also effected on out-of-turn basis. These aspects would reveal that the appellant had virtually recognised the fact that the writ petitioner/the first respondent herein is really deserving appointment on compassionate grounds. Subsequently, the writ petitioner was issued with Ext.P2, which is, in fact, a call letter requiring her to appear for personal interview for appointment in National Aviation Company of India Limited, on out-of-turn basis. The opening sentence in the said letter reads thus: “With reference to your application for appointment on Out of Turn basis, you are requested to appear for Personal Interview for appointment in National Aviation Company of India Ltd. NACIL(A) on Date, Time and Venue have been mentioned therein.” (Emphasis added) WA.No. 2122 of 2018 -13- Paragraph 8 of the said letter also assume relevance and it reads thus: “Please note that if you do not appear for the Personal Interview, it will be presumed that you are not interested for absorption in Air India on compassionate grounds and no further correspondence will be entertained in this regard.” Thus, it is to be noted that Ext.P2 was issued to the writ petitioner after her engagement as Peon in the Air India Booking Office with effect from 10.10.2002. Ext.P3 would reveal that subsequent to Ext.P2, the writ petitioner was actually subjected to medical examination on out-of-turn basis on compassionate grounds. Ext.P4 also assume relevance in the contextual situation. Ext.P4 came to be issued after letter dated 18.10.2013 of the writ petitioner addressed to the Chief Minister of Kerala, was forwarded to the appellants for urgent action. In paragraph 2 therein, it is WA.No. 2122 of 2018 -14- ## stated thus: “We have gone through your representation. In this connection we would like to inform you that after the demise of your husband Mr. Chandran Gopi, St.No.46082 on 23 Feb 2001, you were offered casual engagement in Air India Booking Office, Thiruvananthapuram on compassionate grounds on out of turn basis effective 10 Oct 2002. Further, due to imposition of ban on fresh recruitment by the Ministry of Civil Aviation in May 1997, we could not offer you permanent appointment in Air India.” (Emphasis added) 8. Thus, it is evident that the writ petitioner was given casual engagement on compassionate ground on outof-turn basis with effect from 10.10.2002 after the PreEmployment Medical Examination. The above extracted portion from Ext.P4 would fortify our view that despite the Pre-Employment Medical Examination, the writ petitioner was to be accommodated only on casual engagement solely because of the ban on permanent appointment in Air India. True that in Ext.P4, it is further stated thus:- WA.No. 2122 of 2018 -15- “Further, regarding the selection process that you underwent in Dec 2008, we have been informed by our Recruitment Section, Mumbai who conducted the selection exercise that due to Management instructions, the compassionate appointment on permanent basis was put on hold. As and when it is decided to engage out of turn compassionate cases in Air India on permanent basis, you will be considered along with other compassionate cases.” (underline supplied). 9. One crucial aspect discernible from the said part of Ex.P4 letter is that the writ petitioner was actually subjected to the regular process of selection in December, 2008 and that too, it was conducted by the Recruitment Section at Mumbai which is entrusted with the task of conducting the selection exercise into the first respondent Company and even after completing such selection process, the compassionate appointment on permanent basis was put on hold, taking into account the ban on appointment. It would also reveal that at that point of time, for effecting WA.No. 2122 of 2018 -16- compassionate appointment, nothing more was to be done and the compassionate appointment on permanent basis was put on hold, solely because of the ban on regular appointment. The further proceedings would reveal that the writ petitioner who was engaged on casual basis after being subjected to all procedures for regular appointment on 10.10.2012 is continuing in service, uninterruptedly. In the meanwhile Ext.P10 policy was introduced. True that, under Clause 12 of Ext.P10 scheme under the revised policy for compassionate appointment, it is admissible only in cases where the death had occurred subsequent to 1.1.2016. Virtually, the appellants are relying on the said clause in Ext.P10 to contend that the writ petitioner could not be given regular appointment. Clause 12 (b) of Ext.P10 reads thus:- “This scheme will be effective from 01[st] January 2016 i.e. WA.No. 2122 of 2018 -17- date of demise should be on or after this date and supersedes all previous instructions/circulars issued in this regard by Air India Ltd. or by erstwhile Companies.” Clause 12(b) would thus reveal that Ext.P10 scheme became effective only from 1.1.2016 and only on the issuance of Ext.P10 that all the previous instructions/circulars issued in the matter of compassionate appointment by Air India Ltd or by erstwhile Companies got superseded. It would otherwise reveal that till the coming into force of Ext.P10 with effect from 1.1.2016, the previous instructions/circulars in the matter of compassionate appointment were in force, but action taken under those instructions/circulars could not be implemented solely because of the ban on appointment. The question is whether in such circumstances, the procedures for compassionate appointment commenced in the light of the previous instructions and circulars issued in the matter of compassionate appointment, but put on hold solely based WA.No. 2122 of 2018 -18- on the ban, could be said to be inoperative and to have become unimplementable after 1.1.2016? The letters referred earlier would clearly indicate that while such previous instructions/circulars were in force, the claim of the writ petitioner was considered strictly in accordance with the conditions of such instructions and circulars and as part of the regular process of selection on compassionate appointment on out of turn basis, she was subjected to PreEmployment Medical Examination and such other procedures by the Regular Recruitment Wing of the first respondent Company. But, pursuant to that, the actual order of appointment on compassionate grounds on permanent basis was put on hold only due to the ban on appointment. When that be the circumstance, merely because of Ext.P10 became effective from 1.1.2016, how can the appellants be heard to contend that the case of the writ WA.No. 2122 of 2018 -19- petitioner, which was considered for appointment on regular basis under compassionate appointment scheme at the relevant point of time, was not complete. Virtually, in all respects, it was completed and even going by the appellants, as can be seen from Ext.P4, it was not ultimately crystalised into an order of appointment under the compassionate employment scheme on permanent basis solely because of the ban on appointment. It is a fact that after the issuance of Ext.P10, the appellants considered the claim of one Smt.Smitha Raja for compassionate appointment and she was given compassionate appointment as SupervisoryPersonnel under the 5[th] respondent on 1.4.2016. Ext.P10 would reveal that though it was published on 6.4.2016, it was given effect from 1.1.2016. In other words, it would reveal that though the scheme was published on 6.4.2016 under the scheme claimed for compassionate appointment, WA.No. 2122 of 2018 -20- where the death of the employee concerned took place on or after 1.1.2016 could be considered. When that be so, the appellants cannot contend that a process of selection virtually completed though not ultimately resulted in issuance of an order of appointment would not be given effect to because such procedures followed under the previous instructions and circulars were superseded from 1.1.2016. If such previous instructions or circulars were superseded only with effect from 1.1.2016 with the issuance of Ext.P10 scheme, how can that invalidate the procedures commenced and concluded prior to 1.1.2016, but could not be implemented solely due to the ban on appointment. Viewing in that angle, we do not find any reason to hold that the learned Single Judge had erred in law in holding that the appellants had virtually found the first respondent/the writ petitioner as an eligible candidate for appointment. We are WA.No. 2122 of 2018 -21- inclined to go a step further to hold that in fact, after finding her as an eligible candidate in the regular process of selection conducted by the Regular Recruitment Wing of the first respondent, they refrained themselves from issuing out of turn compassionate appointment, on permanent basis only because of the ban on appointment. 8. It is also to be noted that the appellants who have shown compassion to the writ petitioner on out of turn basis, taking into account the penurious situation to which the family of the deceased employee was put in and to offer casual engagement on out of turn basis solely because of a ban on regular appointment, cannot be permitted to resile from their original stand, solely because of Ext.P10. In this context, it is also relevant to note that the writ petitioner who was subjected to all process of selection for regular appointment was engaged on casual basis as Peon on WA.No. 2122 of 2018 -22- 10.10.2002 and since then she has been continuing in service uninterruptedly, ie; for more than 16 years. We have no hesitation to hold that the appellants who had actually shown compassionate to the writ petitioner cannot be permitted to show the door to the writ petitioner at this distance of time citing such technical reasons. In the said circumstances, we do not find any reason to interfere with the judgment of the learned Single Judge, the outcome of which is nothing, but justice. Consequently, this appeal stands dismissed. sd/- **C.T.RAVIKUMAR JUDGE** sd/- **V.G.ARUN JUDGE** scl/14/01